But Andrea Hernandez, 15, can wear it with the RFID portion removed.

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A federal judge ruled the Texas high school student who refused to wear her RFID-enabled ID badge (as part of a school pilot program) can be compelled to wear the badge (even without the chip), or she'll be transferred to a different school.

Andrea Hernandez, 15, had filed for a legal injunction to no longer be forced to carry the badge, on the grounds that it violated her constitutional and religious rights. She now can choose to stay at her current school, John Jay Science & Engineering Academy (a local magnet school in San Antonio) or be transferred back to the school she was normally assigned to, Taft High School. Among other things, Hernandez argued she is being denied equal protection without the chip as she is now inconvenienced—such as paying for her school lunch by other means—in ways students with the chip can avoid. But the judge summarily dismissed her arguments.

"But the inconvenience is the result of Plaintiff's own decision to refuse the Smart card," US District Judge Orlando Garcia wrote in a judicial order, denying the motion for preliminary injunction on Tuesday.

Judge Garcia also rejected the argument that Hernandez was being forced to express her support for the RFID pilot program simply by wearing the badge.

“The District contends that wearing or carrying a student ID badge is not expressive conduct under the First Amendment,” he added.

“The student ID badge, with or without the chip, is not meant to convey a particularized message, or any message at all. It is simply meant to identify the person carrying it as a student on that campus. The Court must agree with the District. Wearing a student ID badge does not communicate support for the pilot program, or convey any type of message whatsoever.”

The judge concluded that he generally doesn’t buy Hernandez’ arguments, writing “there has been no harm to Plaintiff, and there is no foreseeable harm to Plaintiff in the future. On the other hand, tying the District’s hands and preventing its administrators to exercise their discretion always raises a concern. The scales tip in the District’s favor.”

The Rutherford Institute, a civil liberties organization representing Hernandez, said it would appeal the decision to the United States Court of Appeals for the Fifth Circuit.

“By declaring Andrea Hernandez's objections to be a secular choice and not grounded in her religious beliefs, the district court is placing itself as an arbiter of what is and is not religious,” John W. Whitehead, the institute's president, told The San Antonio Express-News. “This is simply not permissible.”

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Cyrus Farivar
Cyrus is a Senior Tech Policy Reporter at Ars Technica, and is also a radio producer and author. His latest book, Habeas Data, about the legal cases over the last 50 years that have had an outsized impact on surveillance and privacy law in America, is out now from Melville House. He is based in Oakland, California. Emailcyrus.farivar@arstechnica.com//Twitter@cfarivar